Out of the hearings grew the recognized need, therefore, to amend the Act to correct those deficiencies which cannot reasonably be adjusted by remedial reform put into effect by the agencies themselves. H.R. 4960-co-authored by Congressman Horton and me—is designed to provide these corrections. Legislation proposed by Chairman Moorhead would accomplish many of the same purposes. The first major provision of H.R. 4960 is designed to overturn the Supreme Court decision earlier this year in EPA v. Mink wherein the court held, in effect, that a lower court may not question a Federal agency's security classification of information and is not required to question an agency's withholding of information relating to alleged internal procedures.

The decision in this case should not stand. In the instance of security classification, as developed in hearings last year, an extremely large amount of information classified by the Government does not deserve to be classified and can be made public without harm to national security. To overcome this defect, H.R. 4960 directs the courts when deciding whether requested information should be made public to examine the information, including classified data, and to order such information to be made public which is being improperly withheld. Regarding the other category of information dealt with by the Mink decisioninternal proceedings-H.R. 4960 amends exemption 5 of the FOI Act in order that only internal memos and letters may be withheld from the public if they contain recommendations, opinions or advice supportive of policymaking processes. The main purpose for maintaining internal communications in confidence is to protect the policymaking processes by assuring that individuals may render opinions, advice or recommendations without fear of being embarrassed or questioned hostilely elsewhere. This I seek to safeguard in the legislation. Nothing else do I believe should be so exempted, whereas, under existing law, this exemption is widely misused by agencies in withholding requested information.

Coupled with the above provisions in the proposed legislation is authority for the courts to make available those parts of a document-classified, internal communications, or otherwise which do not meet the exemption requirements. This is designed to overcome a practice by some agencies to comingle information in order to bring all of it under the umbrella of an exemption.

H.R. 4960 amends two other major exemptions of the FOI Act in an effort to close loopholes made apparent in the subcommittee's hearings last year.

One amends exemption 4 on trade secrets so that only those documents containing alleged trade secrets may be withheld which are authorized to be held confidential by another statute and which the agency has received under an express grant of confidentiality. This amendment serves two purposes. First, it does not turn the FOI Act into a vehicle for conferring a trade secret exemption, as the present language of that statute has been interpreted to do in some cases. Second, it makes certain that an agency does not thoughtlessly or inadvertently confer a trade secret exemption merely through the receipt of information. Instead, such may only come about through a positive grant of trade secret status. The other involves an amendment to exemption 7, relating to investigatory records compiled for law enforcement purposes. Under the existing FOI Act, this exemption has been given an unduly broad interpretation, exempting records from the public even though a particular investigation is no longer active or the release of information relating thereto could in no way constitute a threat to the investigation. H.R. 4960 seeks to narrow this exemption so that only those records will be exempted which, if made public, would constitute a genuine risk to enforcement proceedings, a clearly unwarranted invasion of personal privacy, or a threat to life.

An additional provision of importance in H.R. 4960 prescribes limited time periods in which an agency must respond to a request by an individual for information. Generally, a request must be responded to within 10 days. Only in five specific situations-spelled out in the bill-may an additional 20 days be allowed, except where novel or complicated issues are involved when an additional 30 days are allowed. Appeals within an agency also must be resolved within 20 days except in novel or complicated cases when an additional 30 days are allowed.

I recognize that a case can be made for more stringent time requirements. Yet, I believe that too great stringency may be unreasonable and even self-defeating in those instances when an agency has difficulty locating the information or in gathering it together. A little more leeway, I submit, may in the long run provide greater amounts of information more expeditiously.

Enactment of legislation has little meaning, frequently, if the means does not exist to enforce it effectively. Such has been the case under the FOI Act because the need to enforce the Act's provisions in court has frequently proven too confusing, costly and time-consuming. In addition, especially in the area of classified information but also in the areas of trade secrets, investigatory files, and internal communications, I suspect courts may be reluctant or at a disadvantage in deciding issues on their merits because they lack expertise of the subject matter.

To overcome this, H.R. 4960 creates a 7-member Freedom of Information Commission which, upon request of a court, Congress, the General Accounting Office, or a member of the public (if 3 members of the Commission concur), is authorized and directed to investigate whether an agency has improperly refused to make information available. The Commission is not itself authorized to order information made available. Only a court may do that as in the case under existing law. But, the bill makes a Commission finding prima facie evidence-meaning that the Government must assume the burden of proof that the withholding was legal. From the court's standpoint, creation of the Commission will provide a source for reviewing large amounts of information of a technical nature, thereby relieving the court of this burden. From the standpoint of Congress, the public and the GAO, a Commission of this type can save large amounts of money and time. The Commission must act expeditiously and with a minimum of procedural redtape. This means that the requesting party and a government agency will get a fast, unbiased decision on the status of information under the FOI Act.

While the Commission lacks authority to order information to be made available, knowledge by an agency that an adverse finding will be treated as prima facie evidence against it by a court should generally tilt the scales toward making the information public. Equally compelling may be the fact that H.R. 4960 authorizes a court to confer attorney's fees and court costs in favor of a requesting party if information has been improperly withheld, while the Commission is authorized to levy against an agency costs and attorneys fees for improperly withholding information at the agency level.

In closing, may I express my pleasure at your early scheduling of these hearings, Mr. Chairman. This is clearly a bipartisan matter, as Members of all persuasion have joined in co-sponsoring our respective bills. In that spirit, I know we can choose what is best in your bill, what is best in my bill, and together we can report out legislation which will greatly benefit the public's need for a freer flow of information.

BILLS IDENTICAL TO H.R. 5425 AND THEIR COSPONSORS

H.R. 5426-Mr. Reuss, Mr. Rosenthal, Mr. Roybal, Mr. Thompson of New Jersey, Mr. Thone.

H.R. 5873-Mr. Matsunaga.

H.R. 6261-Mrs. Mink, Mr. Adams, Mr. Bingham, Mr. Brademas, Mr. Brown of California, Mrs. Chisholm, Mr. Dellums, Mr. Green of Pennsylvania, Mr. Hawkins, Ms. Holtzman, Mr. Mazzoli, Mr. Seiberling, Mr. Stokes, Mr. Van Deerlin.

H.R. 6792-Mrs. Burke of California, Mr. Rangel, Mrs. Schroeder.

BILLS IDENTICAL TO H.R. 4960 AND THEIR COSPONSORS

H.R. 7472-Mr. Anderson of Illinois, Mr. Fascell, Mr. Fauntroy, Mr. Hansen of Idaho, Mr. Heinz, Mr. Parris, Mr. Riegle, Mr. Rooney of Pennsylvania, Mr. Ruppe, Mr. Thompson of New Jersey.

H.R. 7709-Mr. Cohen, Mr. Coughlin, Mr. Esch, Mr. Mallary, Mr. Mitchell of Maryland, Mr. Owens, Mr. Price of Illinois, Mr. Stark.

H.R. 8085-Mr. Cleveland.

H.R. 8399-Mr. Rinaldo.

96-576-73- -3

[From the Congressional Record of March 8, 1973]

MOORHEAD INTRODUCES LEGISLATION TO STRENGTHEN THE FREEDOM OF
INFORMATION ACT (5 U.S.C. 552)

The SPEAKER pro tempore. Under a previous order of the House, the gentleman from Pennsylvania (Mr. MOORHEAD) is recognized for 5 minutes.

Mr. MOORHEAD of Pennsylvania. Mr. Speaker, I am today introducing a bill, the "Freedom of Information Amendments of 1973." It is cosponsored by many of our House colleagues on both sides of the aisle, and is also being introduced today in the other body by the distinguished Senator from Maine (Mr. MUSKIE), also with bipartisan cosponsorship.

The bill contains a series of amendments to the Freedom of Information Act (5 U.S.C. 552) designed to strengthen the operation of the act, to broaden the public's right to know, and to plug loopholes which secrecy-minded bureaucrats have found in the present law. The measure is based upon weeks of hearings last year by the Foreign Operations and Government Information Subcommittee and on the unanimous report adopted last September by the House Government Operations Committee entitled "Administration of the Freedom of Information Act"-House Report 92-1419.

Mr. Speaker, the legislative history of the act, which became effective on July 4, 1967, clearly sets forth the rights of all Americans to know what the Federal Government is doing in their name--subject only to nine specific exemptions. The law was the result of some 11 years of investigations, studies, and hearings by our subcommittee under the dedicated leadership of the gentleman from California (Mr. Moss), who presently serves as ranking Democratic member on our subcommittee. But our investigations and hearings last year on the operation of the act during the past 5 years showed that in too many instances the Federal bureaucracy has been able to stall, distort, and otherwise thwart efforts of many citizens to obtain information or documents to which they are clearly entitled under the Freedom of Information Act.

Our unanimous report recommended a number of administrative reforms by Federal agencies to attack some of the deficiencies in the administration of the act. Our follow-up efforts to implement these recommendations have resulted in pledges from virtually all of the Federal agencies that they will implement our administrative reform proposals. In this connection, I placed into the RECORD last month the text of the new Department of Justice regulations which incorporate most of these recommendations. I urge other Federal agencies to follow the leadership of the Justice Department. RECORD, February 20, 1973, page E894-7. However, we concluded that many of the barriers to the free flow of information that Congress intended to remove when it passed the Freedom of Information Act in 1966 can only be overcome by legislation that will clarify, strengthen, and improve existing language in the act. That is what the bill introduced today seeks to accomplish.

Mr. Speaker, because of the wide interest in the proposed amendments to the act, I will describe each of them briefly:

AMENDMENTS TO SECTION 552 (A)

Agencies would be required to "publish and distribute" their opinions made in the adjudication of cases, policy statements and interpretations adopted, and administrative staff manuals and instructions to staff that affect the public. rather than merely making them "available for public inspection and copying," as provided in the present law.

Agencies would be required to respond to requests for records which "reasonably describes such records." This language is substituted for the term “identifiable records," which we discovered was used by the bureaucracy in many cases to avoid making information available.

Agencies would be required to respond to requests under the act within 10 days-excepting Saturdays, Sundays, and legal public holidays after receipt of the request and within 20 days-with the same exceptions-on administrative appeals following denials to the requesting party. These time periods are the result of a 1971 study and recommendations on improving the operation of the act as adopted by the Administrative Conference of the United States and would provide a positive mechanism to correct one of the most glaring deficiencies uncovered during our hearings-that of agency stalling and foot-dragging tactics to avoid public disclosure.

The Government could be required by the courts to pay "reasonable attorney fees and other litigation costs" of citizens who successfully litigate cases under the act. This amendment is directed toward another major deficiency of the present law revealed during our hearings-the high costs to the average citizen when attempts to obtain records under provisions of the act are frustrated by arbitrary or capricious acts of the bureaucracy or by foot-dragging tactics. Such assessment would be at the option of the court and has been successfully used in numerous civil rights cases in past years.

Agencies would be required to file answers and other responsive motions to citizens' suits under the act within 20 days after receipt. Under normal rules of Federal civil procedure, the Government is given 60 days to file such responses, although the private citizen has only 20 days to respond to Government motions; this amendment would plug a major loophole used by the Government and revealed in our hearings, involving cases where repeated filing of delaying motions by the Government stalled court consideration of Freedom of Information Act cases for as long as 140 days. Such stalling tactics make a mockery of the law and often make the information, if finally made available to the citizen, virtually useless to him.

New provisions proposed to section 552 (a) would clarify the original intent of Congress in connection with the interpretation of the "de novo" requirements placed on the courts in their consideration of cases under the act. Such amendment is made necessary by the Supreme Court's decision in the case of Mink v. EPA, (410 U.S.) decided on January 22, 1973, when the Court held that judges may not examine in camera documents in dispute where the Government claims secrecy by virtue of exemption 552 (b) (1), dealing with the national defense or foreign policy, and are not required to exercise such in camera judgment in cases involving exemption 552(b)(5), dealing with interagency or intraagency memorandums. The amendments make it clear that Congress intended and still intends that "de novo" as used in the law means that since the burden of proof for withholding is on the Government, courts must examine agency records in camera to determine if such records as requested by the plaintiff in a suit under the act, or any part thereof, should be withheld under any of the nine permissive exemptions of 552(b). It also makes it clear in cases where exemption 552 (b) (1) is claimed by the agency, the Court must examine such classified records to see if they are a proper exercise of such Executive order classification authority and that disclosure of the information requested would actually be "harmful to the national defense or foreign policy of the United States."

AMENDMENTS TO SECTION 552 (B)

Permissive exemption (b) (2) would be amended to require disclosure of information about an agency's internal personnel rules and internal personnel practices, so long as such disclosure would not "unduly impede the functioning of such agency."

Permissive exemption (b) (4) would be amended to modify the exemption for trade secrets by requiring that such types of information be truly privileged and confidential, as is already provided in the case of commercial or financial information under this exemption.

Permissive exemption (b)(6) would be amended to limit its application to medical and personnel "records," instead of "files" as in the present law; this would close another loophole in the act whereby releasable information is often commingled with other types of information in a single "file," and therefore withheld.

Permissive exemption (b) (7) would also be amended to substitute the word "records" for "files" as in (b) (6), for the same reason-to curb agency commingling of information to avoid public disclosure. The amendment would also narrow the exemption to require that such records be compiled for a "specific law enforcement purpose, the disclosure of which is not in the public interest." It also enumerates certain categories of information that cannot be withheld under this exemption such as scientific tests, reports, or data, inspection reports relating to health, safety, or environmental protection or records serving as a basis for a public policy statement of an agency, officer, or employee of the United States, or which serve as a basis for rulemaking by an agency.

AMENDMENT TO SECTION 552 (C)

The amendment proposed to section (c) clarifies the position that Congress, upon written request to an agency, be furnished all information or records by the Executive that is necessary for Congress to carry out its functions. Language in the present law merely states that the Freedom of Information Act does not authorize "withholding of information from Congress."

NEW SECTION 552 (D)

Establishes a mechanism for congressional oversight by requiring annual reports from each agency on their record of administration of the act, requiring certain types of statistical data, changes in their regulations, and similar types of information.

Finally Mr. Speaker, the bill provides that these amendments shall take effect 90 days after enactment so as to provide adequate time for the executive agencies to promulgate necessary changes in their regulations and operational guidelines. Mr. Speaker, the Freedom of Information Act has always enjoyed broad bipartisan support. Our subcommittee has been forthright in criticizing bureaucratic secrecy during the past four administrations-two Republican and two Democratic-when it has infringed on the right of the American people to know what their Government is doing in their name.

Our hearings on the administration of the act last year produced much disturbing evidence that the vast Federal bureaucracy is withholding great amounts of information from the American people by a variety of loopholes in the present law and other devices. Contrary to general opinion, much of the information being hidden by Government agencies has little to do with hydrogen bombs, weapons systems, state secrets, or other sensitive types of classified data that requires safeguarding. We found that a large number of government denials of information requested under the act involved matters connected with the day-to-day activities of Federal agencies in their handling of various domestic programs financed out of our tax dollars or to avoid embarrassing bureaucratic mistakes, scandal, maladministration, or other actions directly contrary to the intent of Congress and the public interest.

Our bill will help reverse the dangerous trend toward "Government behind closed doors" that threatens our free press, our free society, and the efficient operation of hundreds of important programs enacted and funded by Congress. It will help restore the confidence of the American people in their Government and its elected leadership by removing the veil of unnecessary secrecy that shrouds vast amounts of Government policy and action.

We must eliminate to the maximum extent possible Government's preoccupation with secrecy and closed door policy formulation, because it cripples the degree of participation of our citizens in governmental affairs that is so essential under our political system. Government secrecy is the enemy of democracy. Secrecy subverts, and will eventually destroy, any representative system-just as it is necessary to maintain a totalitarian dictatorship.

The enactment of legislation in this Congress to strengthen the Freedom of Information Act to make it more difficult for the Federal bureaucrat to withhold vital information from the Congress and the public is of paramount importance. The bipartisan nature of this effort is shown by the fact that members of both parties in both the House and the Senate are cosponsoring this bill. Bipartisan work has been responsible for the investigations, hearings, and the unanimous Government Operations Committee report issued last year. Last week, the gentleman from New York (Mr. HORTON), ranking minority member of the full committee, and the gentleman from Illinois (Mr. ERLENBORN), ranking minority member of our subcommittee, introduced H.R. 4960, a separate bill to strengthen the Freedom of Information Act. I was most pleased to cosponsor their bill also to demonstrate the truly bipartisan approach that our committee follows in this area. Both have been diligent over the years in fulfilling their commitment to the principles of the act.

Mr. Speaker, hearings will be scheduled on these bills to make needed amendments to the act following the Easter congressional recess. I invite other Members who share our concern for strengthening the Freedom of Information Act to join as cosponsors or to testify during our hearings. I am confident that our committee will succeed in reporting a workable and meaningful bipartisan bill to the House that all Members can enthusiastically support.